Court Backs Bush on Military Detentions

PublishedJuly 17, 2008

Wednesday 16 July 2008
By Adam Liptak, The New York Times

Indefinite military detentions of persons apprehended within the United States
are legal, according to a Tuesday federal appeals court decision. (Read text
of decision.) However, a concurrent decision allows detainee Ali al-Marri (pictured)
to challenge his detention in court.

President Bush has the legal power to order the indefinite military detentions
of civilians captured in the United States, the federal appeals court in Richmond,
Va., ruled on Tuesday in a fractured 5-to-4 decision.

But a second, overlapping 5-to-4 majority of the court, the United States
Court of Appeals for the Fourth Circuit, ruled that Ali al-Marri, a citizen
of Qatar now in military custody in Charleston, S.C., must be given an additional
opportunity to challenge his detention in federal court there. An earlier court
proceeding, in which the government had presented only a sworn statement from
a defense intelligence official, was inadequate, the second majority ruled.

The decision was a victory for the Bush administration, which had maintained
that a 2001 Congressional authorization to use military force after the Sept.
11 attacks granted the president the power to detain people living in the United
States.

The court effectively reversed a divided three-judge panel of its own members,
which ruled last year that the government lacked the power to detain civilians
legally in the United States as enemy combatants. That panel ordered the government
either to charge Mr. Marri or to release him. The case is likely to reach the
Supreme Court.

How helpful the decision will be to be Mr. Marri remains to be seen, as the
majority that granted him some relief was notably vague about what the new court
proceeding should look like. In that respect, Tuesday’s decision resembled last
month’s decision from the United States Supreme Court granting habeas corpus
rights to prisoners held at Guantánamo Bay.

Mr. Marri is the only person on the American mainland known to be held as
an enemy combatant. The government contended, in a declaration from the defense
intelligence official, Jeffrey N. Rapp, that Mr. Marri was a Qaeda sleeper agent
sent to the United States to commit mass murder and disrupt the banking system.

Mr. Marri was arrested on Dec. 12, 2001, in Peoria, Ill., where he was living
with his family and studying computer science. He was charged with credit-card
fraud and lying to federal agents, and was on the verge of a trial on those
charges when he was moved to military detention in 2003.

Brian Roehrkasse, a Justice Department spokesman, said the decision properly
recognized “the president’s authority to capture and detain Al Qaeda agents
who, like the 9/11 hijackers, come to this country to commit or facilitate warlike
acts against American civilians.”

Mr. Roehrkasse added that while the department believed that Mr. Marri “had
already received all the process he was due,” its lawyers were “studying
the court’s decision and will respond to Mr. Marri’s contentions” before
the trial judge.

Jonathan L. Hafetz, a lawyer for Mr. Marri with the Brennan Center for Justice
at New York University School of Law, called the Fourth Circuit’s decision deeply
disturbing.

“This decision means the president can pick up any person in the country
– citizen or legal resident – and lock them up for years without the most basic
safeguard in the Constitution, the right to a criminal trial,” Mr. Hafetz
said.

The 216-page decision included seven opinions, none of which commanded a majority.
The only common ground was four unsigned paragraphs at the beginning of the
decision summarizing the result.

The Fourth Circuit is generally considered the nation’s most conservative
federal appeals court. The closely divided and complex decision in a major terrorism
case therefore came as something of a surprise.

Mr. Marri’s unusual situation played a role, said Robert M. Chesney, a law
professor at Wake Forest University. Mr. Marri “was lawfully present in
the U.S. and then arrested and held here, as opposed to being a noncitizen captured
in a foreign land,” Professor Chesney said. “This consideration makes
his case more difficult even in the eyes of relatively conservative jurists.”

The five judges who ruled that the president has the authority to detain people
captured in the United States offered differing criteria for who might be subject
to such detention.

Judge J. Harvie Wilkinson III said the president might detain members of organizations
or nations against which Congress had authorized the use of force who mean to
harm people or property to further military goals.

To reverse the trial judge’s decision allowing Mr. Marri’s detention to continue
“because he was not captured on a foreign battlefield or foreign soil,”
Judge Wilkinson wrote, “is akin to a judicial declaration that Congress
and the executive may fight only the last war.”

Judge Diana Gribbon Motz, writing for herself and three other judges, disagreed,
saying that Mr. Marri was at most a civilian criminal who may be prosecuted
in the courts but not detained by the executive branch.

“This does not mean that al Marri, or similarly situated American citizens,
would have to be freed,” Judge Motz wrote. “Like others accused of
terrorist activity in this country, from the Oklahoma City bombers to the convicted
September 11th conspirator [Zacarias Moussaoui] they could be tried on criminal
charges and, if convicted, punished severely. But the government would not be
able to subject them to indefinite military detention.”

Judge William B. Traxler Jr. was the swing vote. He agreed that Mr. Marri
was subject to detention if what the government said about him was true. But
Judge Traxler broke with the judges who voted against Mr. Marri across the board.
Those judges said Mr. Marri had already had an adequate opportunity to challenge
his detention in court, in the proceeding based on Mr. Rapp’s statement. Judge
Traxler said that Mr. Marri must be given a fair and meaningful opportunity
to see and refute “the most reliable evidence” against him, subject
to national security and other concerns.

The four judges who would have ordered Mr. Marri’s release from military custody
– Judges Motz, Roger L. Gregory, M. Blaine Michael and Robert B. King – agreed
to join an order returning the case to the trial court based on Judge Traxler’s
middle ground. They did so, Judge Motz wrote, “to give practical effect
to the conclusions of the majority of the court who reject the government’s
position.”

But Judge Gregory expressed frustration over the net effect of the exercise.
“There is no concrete guidance as to what further process is due”
Mr. Marri, he wrote.

All of the judges who would have denied Mr. Marri any relief – Judges Wilkinson,
Karen J. Williams, Paul V. Niemeyer and Allyson K. Duncan – were appointed by
Republican presidents; all who would have granted him full relief were appointed
by Democrats. Judge Traxler was appointed to the appeals court by President
Bill Clinton.

In the conclusion of his long opinion, Judge Wilkinson said terrorism cases
presented courts with special challenges.

“We may never know,” he said, “whether we have struck the proper
balance between liberty and security, because we do not know every action the
executive is taking and we do not know every threat global terror networks have
in store.”